FERVOR SPIKES WITH MIGRANTS’ SURGE

As overtaxed system struggles to keep up with numbers, more unaccompanied children allowed to stay in U.S.

Slow-moving courts, an overtaxed system and the unintended effects of a law adopted six years ago have combined to mean that a fraction of the unaccompanied minors that come to the U.S. from Central America are sent home.

Immigration and Customs Enforcement has been deporting at a rate of one minor for every 14 that come into the country, a gap that’s expected to widen significantly with a fourfold increase in arrivals this year.

The rest have failed to appear in court, been given asylum, been declared wards of the state — or are simply waiting for their day in court. If they can show they were neglected or abandoned at home, the 2008 law allows them to stay, receiving health benefits and a green card.

The minor children have surged across the U.S. border this year, pushed north from chaotic Central American nations by a desire to escape drug cartels and street gangs, pulled to the border by reports — with some foundation — that they will likely be allowed to stay in the U.S.

Anger over that prospect fueled protests and a standoff at the Murrieta Border Patrol office last week, and counter-protests by more welcoming Californians.

Data culled from federal reports, congressional testimony and federal agency writings indicate that in recent years as the surge of people from the Central American countries of El Salvador, Guatemala and Honduras steadily increased, few have been sent home.

A study released in June by the Center for Immigration Studies, which advocates for tighter immigration laws and enforcement, said that the number of people deported from those three countries declined almost 40 percent from the same time last year.

The study also showed the number of deported minors from those countries has also fallen steadily from about 2,500 six years ago to fewer than 2,000 last year.

The Obama administration estimates that this fiscal year, which ends in September, some 90,000 unaccompanied minors will be caught trying to illegally enter the country along the southwest border, most through Texas.

Last year that figure was 24,669. In 2012 it was 13,625.

Once apprehended, the children, like adults who are caught, are put into a deportation track through the nation’s overcrowded immigration courts.

Some can avoid deportation if they qualify for asylum, another lengthy process, or another legal way to stay in the country.

But with the crush of minors coming to the U.S. over the past several years, pleading a special circumstance may not be necessary.

For those who don’t qualify, time may be their biggest ally.

In congressional testimony on June 25, Immigration and Customs Enforcement Executive Associate Director Thomas Homan told the House Judiciary Committee that 87 percent of all minors with a notice to appear — the court document that states why someone should be deported — over the past five years still do not have their cases finalized.

“I can say that every unaccompanied child and every family unit member are served with NTAs and scheduled to be put in front of an immigration judge, so that they have their proceedings scheduled, but it’s years out,” Homan said. “There’s a lack of immigration judges, so some of these hearings take years. It can take two years. It can take five years.”

How many minors served with notices actually show up to court hearings could not be determined.

“They don’t just disappear,” said Jan Bejar, a San Diego immigration lawyer. “They keep tabs on them. But like anything, some people go to court. And some people don’t.”

The Department of Justice estimates that 33 percent of all unauthorized immigrants released on their own recognizance in 2013, including the minors, failed to appear. That’s up from 24 percent in 2009.

Jessica Vaughan, who authored the Center for Immigrations Studies report, said that two factors are contributing to the predicament with the immigrant children.

The first is a law first passed in 2002 and readopted and changed in 2008 to address the problem of human trafficking with minors.

It says the children can’t be sent back (children from Mexico are an exception) and must be treated humanely and ultimately placed in the “least restrictive setting” that is in the “best interests of the child.”

Then in 2011, ICE adopted new standards for deportations, giving officials more discretion to not pursue certain low-level cases and instead focus attention on deporting gang members, national security risks, serious felons and repeat immigration offenders.

“The law creates a presumption that the child was trafficked and that sets up a completely different way of handling these cases,” she said.

Coupled with the changed deportation standards, the chances of minor children who don’t commit crimes being deported are very low, she said.

Experts said many of the minors will likely qualify for some kind of legal immigration status, such as being granted asylum. A report by the Vera Institute of Justice, a nonprofit research group, recently estimated that about 40 percent of all minors would be eligible for some kind of immigration relief.

Last year ICE sent back to their home countries fewer than 2,000 children.

Under the law, once a minor is arrested by border law enforcement, the child has to be turned over to the Health and Human Services agency in 72 hours. Once in HHS custody, the children are placed with either a parent, relative, guardian or in some kind of foster care.

Immigration lawyers and others who work with the youths say whether or not a child will go to court dates depends on many factors, such as whether a minor is being represented by a lawyer.

In general, there is no right to a lawyer in immigration cases. But the 2008 law signed by George W. Bush called on the government to provide as often as possible pro-bono lawyers from the private sector to represent children.

These lawyers can press for an asylum finding on behalf of the child or other work, said Allison Bechill of Casa Cornelia, a San Diego organization that represents minors in immigration court.

“Our goal is to make sure a child’s rights are protected and they have a legal representative as they go through the process,” she said.

In addition to asylum, minors can also gain legal status through something called a special immigration juvenile visa.

Minors with that document are declared wards of the court in the state where they are placed, so long as they can show they were abused, neglected or abandoned either in their native country or the U.S.

With that status, they qualify for a variety of benefits, such as health care. And they can also get a green card, entitling them to legal residence in the U.S., said San Diego immigration lawyer Lilia Velasquez.

“Once they make it to our border under international conventions and our own laws, we have an obligation to protect them,” she said.